Probate has a rough reputation. It’s basically the dentist’s office of the estate planning process. While useful and important, many people would prefer to avoid it entirely. 

But just like visiting the dentist regularly, it’s still a good idea to open a probate after a loved one passes away, even if they engaged in proper estate planning. This important process can ensure that there are no lurking issues in the estate and prevent bigger problems from developing further down the road. 

So, why does probate matter, what are its benefits, and what can happen if you decide not to open a probate?

What does filing for probate entail?

Probate is a legal procedure a person’s estate goes through after they pass away. It is a court-supervised proceeding that: 

• Verifies a person’s last will and testament
• Puts a representative in charge (Executor or Executrix)
• Ensures any outstanding taxes and debts are paid
• Assesses the estate value
• Provides an inventory or accounting to the court or beneficiaries
• Approves the executor to distribute the remaining value of the estate 

Unless someone engages in certain estate planning procedures, their estate will likely go through probate after their death. However, there are numerous ways to handle probate. For example, Texas offers a Small Estates Affidavit, an alternative pathway to probate for estates under $75,000.  This is only available if the person died without a will, and there are other caveats. 

Other estates might handle probate through independent administration, dependent administration, and muniment of title. An estate planning attorney can help you understand which option suits your needs. 

What happens when someone files for probate?

When an individual files for probate, they are asking the court to oversee the process of distributing the deceased’s assets in accordance with their last will and testament. 

If there is no will, the court will follow state intestate succession laws to distribute the deceased’s assets. They will appoint an Administrator (similar to an executor).

In most cases, probate is beneficial—it ensures that the deceased’s wishes are honored, debts are paid, and disputes are resolved. For example, if disputes arise regarding the distribution of the estate, probate courts will listen to both parties, potentially open mediation, and resolve the issue. If there is any chance the will could be contested, probate is likely necessary. 

Alternatively, if there is no will, probate (and intestate succession laws) helps ensure fair distribution of the estate after taxes and debt payments.

Financial considerations and timelines for probate

However, probate isn’t free. Costs can include court fees, attorney fees, filing notices, and creditor expenses. Despite this, the benefits of probate often outweigh the costs, as it provides clarity and oversight during a difficult time.

Benefits of opening a probate

At first glance, probate might not feel necessary, but it can provide clarity and peace of mind during an otherwise difficult time. By resolving uncertainties, reducing risks, and ensuring the estate is handled fairly and transparently, probate can prevent bigger challenges down the road. Here’s why it matters:

Resolving an unclear will

If a will is unclear and beneficiaries attempt to distribute the estate without probate, this can lead to legal conflicts later on. Going through probate ensures that the will is interpreted through the courts and protects the executor from lawsuits. 

Resolving multiple wills

If multiple wills exist, it can be tricky to determine which wills are valid or how they should be interpreted. Going through the courts to determine the estate distribution will protect the executor from personal liability. 

Reducing risk in an insolvent estate

If there are more debts than assets, the executor, as the estate’s fiduciary, must determine the priority and order of debt payments. Few people want that personal liability; probate can resolve the issue instead.

Shortening time for creditor claims

Many people pass away without resolving all outstanding debts. This can transfer the debt burden to their estate, which, without probate, can extend for quite a while. 

Opening a probate decreases the time creditors have to file a claim. If they don’t do it correctly, the courts may not pay them, which can result in more money for the estate beneficiaries. 

Reducing beneficiary concerns

Probate requires disclosing all information and costs related to the estate, which can alleviate beneficiary concerns and ensure the fair distribution of assets. This creates a level of comfort and certainty that the estate representative fully discloses all information and that their actions are supported by law. 

Reduced risk for the estate executor

If the language of the will is unclear, the executors may be held liable. They are considered the fiduciaries of the estate, which makes them liable for the deceased’s unpaid taxes and debts and any violations of their duty to the will’s beneficiaries. 

This can be really stressful. If personal liability is a concern, such as someone’s inability to be fair or impartial, then going through probate can help alleviate those concerns for the executor and the other beneficiaries. 

Resolving beneficiary disagreements (without further lawsuits)

Not all beneficiaries will agree on the distribution of the estate. If beneficiaries disagree or are uncooperative, then this can make it difficult for the executor to distribute the estate without opening themselves up to legal liability. 

Probate will shield the fiduciary and ensure the estate is properly administered without beneficiary disagreements holding up the process for years. This can prevent major savings in the long run. 

What happens if you choose not to open a probate?

If you choose not to open a probate when someone passes away, the consequences or lack thereof will depend on the circumstances of the estate. 

Probate allows the transfer of property and assets from the deceased’s estate. Without probate, if the person did not engage in advanced estate planning, such as establishing a living trust or a transfer on death deed, you may not be able to take title to those assets. 

Keep in mind that not all assets can enter into a trust, and even with the presence of a trust, you may not be able to access the full extent of the estate without opening a probate. 

Failing to file a probate can also open you up to future lawsuits by other beneficiaries or potential beneficiaries of the estate. If someone had legal grounds to be part of the estate and found out that the probate hadn’t been filed, they could have grounds for a lawsuit. 

Learn more from an experienced Texas probate attorney

As helpful as probate can be, it can also create frustrations during an emotional time in many people’s lives. An experienced probate attorney, such as the team at the Law Offices of Shann M. Chaudhry, ESQ., can help guide you through the probate process. 

Contact us to schedule a consultation and learn how we can help you navigate the probate process.